If another person influences a decision-maker in a discriminatory way, can that person be considered a joint decision-maker?
Yes, held the EAT in Metropolitan Police v Denby.
The Claimant was a male police officer. The Deputy Assistant Commissioner had concerns about a lack of gender diversity in a group led by the Claimant. She responded in a heavy-handed manner to complaints about members of that group claiming for overtime not worked but, when similar complaints were made about a group led by a female officer, she allowed them to be investigated locally.
The employment tribunal found that the Deputy Assistant Commissioner had influenced the decision by another officer to subject the Claimant to a criminal investigation. The EAT agreed that this was a finding which it was entitled to make, and that the other officer was not "innocent", in the sense defined in CLFIS v Reynolds, because he was fully aware of the discriminatory context. Although this context had not been put to him in cross-examination, it was sufficient that he had been questioned about the influence on him.
The employment tribunal allowed an amendment on the sixth day of the hearing, where another potential discriminator was added, in the alternative to the one originally pleaded, after the identity of the decision-maker had been thrown into doubt by witness evidence. The EAT stated that the CLFIS principle should not be allowed to become a means of escaping liability by deliberately opaque decision-making. Where it is difficult, for good reason, to identify the individual responsible, an amendment is sometimes permissible during the course of a hearing, and this did not cause any procedural unfairness on the facts of this case.
Thanks to James Medhurst of Fieldfisher for preparing this case summary.
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